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Legal Ethic s in the
Ma laysian Legal Educ ation System
Quo Vadis?
Presented by
MARIETTEPETERS
25th
Anniversary Special Commemorative Session
24-27 November 2005
Manila, Philippines
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Legal Ethics, like politeness on subways, kindness to children, or fidelity in
marriage, cannot to a great extent be taught in schools or enforced by third
parties.1
A. CANONS OF LEGAL ETHICS
There are numerous statutes2 that deal with legal ethics in Malaysia. Emphasis however
will be given to the three main ones, namely the Legal Profession Act 1976 (LPA); Legal
Profession (Practice & Etiquette) Rules 1978 (LEPPER) and the Legal Profession
(Publicity) Rules 2001(LEPUB). Before I delve into the teaching of ethics and the
methods employed to teach, I would like to mention some of the rules of ethics that exist
in Malaysia. In order to provide clarity and to illustrate the application of the canon of
ethics, several situations are envisaged.
1Schnapper E : The Myth of Legal Ethics 64 ABA Journal 202
2 Advocates and Solicitors (Issue of Sijil Annual) Rules 1978; Advocates and Solicitors Compensation Fund Rules1978; Solicitors Account Rules 1990; Accountants Report Rules 1990; Solicitors Accounts (Deposit Interest) Rules
1990; Solicitors Remuneration Order 1991; Legal Profession (Professional Liability) (Insurance) Rules 1992;Solicitors Remuneration (Amendment) Order 1994 P.U. (A) 80/1994; Legal Profession (Disciplinary Proceedings)(Investigating Tribunal and Disciplinary Committee) Rules 1994; Legal Profession (Disciplinary Proceedings)(Appeal) Rules 1994; Legal Profession (Disciplinary Board) (Procedure) Rules 1994; Legal Profession (Discipline
Fund) Rules 1994; Advocates and Solicitors (Issue of Sijil Annual) (Amendment) Rules 1995 P.U. (A) 239/95; LegalProfession (Professional Liability) (Insurance) (Amendment) Rules 1999; Advocates and Solicitors (Issue of SijilAnnual) (Amendment) Rules 1999; Advocates and Solicitors (Issue of Sijil Annual) (Amendment) Rules 2000;Solicitors Accounts (Deposit Interest) (Amendment) Rules 2000; Legal Profession (Publicity) Rules 2001.
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1. General Duties
There are some general duties and obligations of an advocate and solicitor 3 that must be
mentioned at the outset. As a general rule he is to uphold the interest of his client, the
interest of justice and the dignity of the profession 4. He shall, while acting with all due
courtesy to the tribunal before which he is appearing, fearlessly uphold the interest of his
client, the interest of justice and dignity of the profession without regard to any
unpleasant consequences either to himself or to any other person.
An advocate and solicitor is also prohibited from advertising his services5. Although the
rules against advertising have been relaxed to a certain extent by the Legal Profession
(Publicity) Rules 2001, they are still regarded by some quarters as archaic and outdated.
It must also be noted that an advocate and solicitor is not to divide costs or profits with an
unqualified person6, nor is he allowed to do or cause touting7.
2. Duty towards one another
It is quite ironic, if not amusing that lawyers who are supposed to be well-educated and in
many situations actually learned and respected, need rules to guide their conduct towards
one another. These rules apply to lawyers, whether in court or non-litigious situations
from one as non-eventful as a telephone call to a trial at the highest appellate court.
3A practising lawyer in Malaysia is referred to as an Advocate & Solicitor.
4 LEPPER, rules 16 and 315 LEPPER, rules 37 and 386 LEPPER, rule 527 LEPPER, rule 51. See alsoBalakrishnan Devaraj v Patwant Singh v Niranjan Singh [2005] 4 CLJ 210
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The rule of thumb is for an advocate and solicitor to conduct himself with integrity and
professionalism8. In particular he:
a) SHALL NOT conduct a case in a way merely to facilitate delay 9b) SHALL NOT influence conduct of counsel10c) SHALL NOT communicate with NOR appear for a person represented by
another lawyer11
d) SHALL NOT make unnecessary objections12e)
SHALL be ready for the day for trial
13
In addition to LEPPER, there are various rulings14 issued by the Malaysian Bar Council
and these rules deal with issues pertaining to courtesy15
; soliciting and poaching of staff16
and even exchanging of legal authorities17.
3. Duty towards Clients
Lawyers wear the hat of a confidante when dealing with clients. Whether an individual,
firm, company or society, clients take lawyers into their confidence and entrust them not
only with their money and confidential information, but also with the task of doing their
best to protect, preserve and defend their rights and interests.
8
He is to be characterized by candour, courtesy and fairness rule 18 of LEPPER.9
LEPPER, rule 1210 LEPPER, rule 3211 LEPPER, rule 4212 Bar Council Rulings 1997, Ruling 1913
LEPPER, rule 2414 Bar Council Rulings 1997 (BCR)15 BCR, Ruling 1016 BCR, Ruling 1217 BCR, Ruling 20
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An advocate and solicitor therefore:
a) SHALL NOT accept the brief in specific situations where he knows he would beembarrassed
18; or that his professional conduct is likely to be impugned
19; or
where it would be difficult to maintain professional independence20; or where he
is unable to appear21;
b) SHALL NOT abuse confidence reposed in him22;c) SHALL NOT stand surety23;d)
SHALL undertake defence fairly and honourably
24
;
e) SHALL disclose all circumstances to the client25.
4. Duty towards the Courts
As officers of the court, it is the duty of every advocate to assist the court in coming to a
correct decision. He shall therefore maintain a respectful attitude towards the court26
. The
conduct of an advocate during proceedings is also regulated by the LEPPER. For instance
he:
a) SHALL supply the court with all relevant information27;b) SHALL be ready for trial on the day fixed28;
18 LEPPER, rule 319
LEPPER, rule 420
LEPPER, rule 521 LEPPER, rule 622 LEPPER, rule 3523 LEPPER, rule 4024
LEPPER, rule 925 LEPPER, rule 2526 LEPPER, rule 1527 LEPPER, rule 2328 LEPPER, rule 24
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c) SHALL put before the court any relevant binding decision29;d) SHALL guard against insulting or annoying questions30;e) SHALL NOT practise any deception on the court31;f) SHALL NOT refer to facts not proved32;g) SHALL NOT misquote33.
B. WHY DO WE NEED LEGAL ETHICS?
all law teachers have a responsibility to give attention to the ethical under-
pinning of legal practice. We have a responsibility to sensitise students to the
ethical problems they will face as practitioners to provide them with some
assistance in the task of resolving these problems, and to expose them to wider
issues such as the unmet need for legal services.34
1. An Influential Profession
Almost all decisions made by lawyers affect others and therefore have legal implications
which makes ethics part of the everyday life of lawyers. From issues affecting clients, the
29 LEPPER, rule 2030
LEPPER, rule 1331 LEPPER, rule 1732 LEPPER, rule 1933 LEPPER, rule 2134 Professor Cranston R, Legal Ethics and Professional Responsibility
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court and society in general, the actions of a lawyer whether condoned or condemned
could have far-reaching consequences. As very aptly studied by Lord Bolinbroke35
the profession of the law, in its nature the noblest and most beneficial to
mankind, is in its abuse and abasement the most sordid and pernicious.
2. Public perception of lawyers
From the Bible
36
to Shakespeare
37
, from novels
38
to movies, lawyers never seem to
escape negative perception.
The qualities generally associated with lawyers include a pre-occupation with money,
egocentricity; attitudes variously described as pompous, patronising, condescending and
arrogant; and tendencies to turn everything into a debate to be won, to complicate
problems, to make more work and generate higher fees, and to distort or conceal the truth
by resorting to technicalities (or worse) in the interest of winning39.
Is this perception due to plain ignorance of the public or is there some truth (whether a
modicum or much more) to the generalisation? One must admit that to a large extent such
perception is in fact due to public ambivalence which may be seen in the following:
35 Quoted in Sharswood G: Legal Ethics: An Essay On Professional Ethics, 5th Ed (Philadelphia: T& JW
Johnson & Co, 1984) p. 17136 Woe unto you also, ye lawyers! For ye lade men with burdens grievous to be borne37 Henry VI, Pt II, Act IV, Scene 2 The first thing we do, lets kill all the lawyers38The Firm39 Reimir GA Ethics: The DRs and Beyond (1992) p.3
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a) ExpectationsWhile decorum, decency and professionalism are qualities that are expected of a
lawyer, many clients prefer lawyers with a touch of a scoundrel in them40
. Hence
lawyers may have to juggle a Jeckyll and Hyde personality and in the course of doing
so may contribute to the misconception by society in general.
b) Media PortrayalThe media has always had a love-hate relationship with lawyers. Portrayals of
lawyers in the media typically depict them as either larger-than-life heroes who
advise and protect helpless clients against overpowering enemies or as sinister
accomplices of criminals. Neither portrayal bears much resemblance to the actual
realities of life where vast majority of lawyers actually provide legal services in a
market economy and where law is just as much a business as it is a profession, where
competition is stiff, bills have to be paid and overheads covered.
Such perception of lawyers therefore may cause the public to be disillusioned.
3. Non-commercial value
In recent years, lawyers practices have become progressively more specialised resulting
in several branches of law with which many practitioners have little need to be familiar.
Legal ethics is one of them thus rendering a dire need for inculcation of such.
40 Willis J What I like and What I dont Like About Lawyers Law Society of Upper Canada Gazette
March 1970 p.52
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4. Descriptive method in reading law
The influence and popularity of the positivism expounded by John Austin and HLA Hart
has created a dichotomy between law and morality. The descriptive (as opposed to the
prescriptive) method of studying law has left no place for moral values and ethics. This
has created a need for the teaching of legal ethics.
C. LEGALETHICS IN MALAYSIALEGAL ETHICSWITHOUTTHEETHICS?
In Malaysia, Legal Ethics is taught at the Bar Finals stage. At the outset it must be
mentioned that there is no Common Bar Examination. The law students from the local
universities sit for the Bar Finals Examination conducted by their respective law
schools41. External students42 and students who read law in foreign universities43 have to
sit for the Bar Finals examination conducted by the Legal Profession Qualifying Board
and these exams are referred to as the Certificate in Legal Practice (CLP). There have
been suggestions to synchronise all bar finals examinations into a Common Bar
Examination but to date that has yet to materialise.
41 There are 5 local public universities conferring law degrees, namely, (a) Universiti Malaya (UM); (b)
Universiti Kebangsaan Malaysia (UKM); (c) Universiti Teknologi Mara (UiTM); (d) Universiti Utara
Malaysia (UUM); and (e) International Islamic Univeristy of Malaysia (IIUM).42 In Malaysia, external law degrees are conferred by Universiti Malaya. It is known as the Bachelor of
Jurisprudence (B. Jur).43 In this context, foreign universities are almost synonymous to universities in the UK, although there are
reasonable numbers reading law in Australia and New Zealand.
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In Malaysia, legal ethics is compulsory and it is taught either as a subject itself or as a
component of a subject spread over one academic year 44. In addition to that, at the
pupillage stage45
, students are required to attend an Ethics course run by the Bar Council.
This is a two day program that ends with a compulsory dinner for students.
Regardless of the law school, Legal Ethics is a compulsory paper and that, to a certain
extent, endorses its importance.
However, in Malaysia, in teaching ethics, teachers adopt the passive approach, teaching
the black letter rules rather than focusing on the application of such.
Lectures and tutorials are conducted based on the Socratic method46 where the rules of
ethics are dictated to the students in lectures and followed by discussions in tutorials. In
certain law schools, students are required to complete assignments that would be
reflected in their final examinations grades.
44 For example in Universiti Malaya,Legal Ethics and Professional Conductis a compulsory subject whilst
at the International Islamic Universiti of Malaysia, it is a component ofProfessional Practice.45
After having completed the Bar Finals examination, a 9 month pupillage awaits the students. Commonly
referred to as the chambering period students are absorbed by legal firms before they are admitted to the
Bar.46 Sometimes referred to as the Passive Approach where students are required to memorise the rules and
regurgitate them at examinations.
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D. OTHERMETHODS
Besides the Passive approach, there are other methods employed in other jurisdictions.
1) Problem Based Learning (PBL)
This method of teaching involves the posing of ethical dilemmas to students as a set
of problems. Students are required to resolve these dilemmas without too much
emphasis on the substantive law issues.
The PBL method has been adopted in some of the local universities in Malaysia in
other subjects and has proved successful.
2) Pervasive MethodThe pervasive method refers to the process of incorporating or inculcating ethics
instructions into all aspects of the legal curriculum. The pervasive method has been
championed by many, most notably by Deborah L. Rhode47
where she explains why
it is preferred to one required course:
No matter how well conceived, a simple required course has other
limitations. Timing is an inherent problem. If the course occurs in the first
47 Professor of Law, Stanford University
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year of training, many students will not yet know enough to grasp the full
dimension of professional dilemmas. If it occurs later, many students will be
too cynical or preoccupied to give it full attention, and they will also have
lacked the background to raise relevant issues in the other classes.48
3) Clinical Stimulation ApproachThis approach involves the teaching of ethics in an actual situation. Students are
attached to legal aid or law offices (with a supervisor) and cases involving real people
in actual situations are posed to them. The clinical approach involves combining the
learning of the substantive law with the teaching of professional legal ethics, in an
environment that at least in part, represents the realities of the professional legal
practitioners.
E. THEPREFERRED CHOICE?
There are three basic steps that must be taken; teaching ethics in such a way
that it encourages students to treat its study as an active and continuing challenge
rather than a passive and finite undertaking, teaching ethics in such a way that
the method of instruction obliges students to deal with ethical problems in an
engaged and participatory session and teaching ethics in such a way that ensures
48 Ethics by the Pervasive Method (1992) 42 Journal of Legal Education 31. See also Starrs J.E
Crossing a Pedagogical Hellespoint via the Pervasive System 17 Journal of Legal Education 365.
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that the process of the product of ethical reasoning is connected to the messy
socio-political context in which ethical controversies and their proposed solutions
arise.49
The main challenge in teaching ethics in Malaysia is how does one go beyond the
teaching of a series of rules to be applied in standard situations? It must also be noted that
Legal Ethics is sui generis different from other courses in that it requires, to a certain
extent, personal introspection. It requires students to address their core personal values
and this may sometimes involve internal conflict.
We need to produce critical and creative law graduates who are self-reliant, self-
determining and self-motivating individuals who are able to communicate well and work
co-operatively as well as independently.
In doing so, law teachers need to equip students to enable them to:
a) Appreciate the relevant principles, issues and complexities of ethics;b) Face and resolve ethical dilemmas in practice;c) Contemplate ethical conduct in the context of justice
It must be admitted though, that legal ethics is, if not the most, a very difficult subject to
teach and even more difficult to instil the interest of students in it. It has been described50
49 Professor Hutchinson of Osgoode Hall.50 Moss D Out of Balance Why Cant Law Schools Teach Ethics? Student Law, Oct 1991
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as the dog of the law school (curriculum) hard to teach, disappointing to take, and
often presented to vacant seats or vacant minds.
Is the method adopted in Malaysia an ideal one? Several criticisms have been made of the
passive method of teaching as it is passive learning by preaching, intellectualisation and
memorisation and where legal ethics is taught in one single course.
First it preserves the unsatisfactory mindset that the ethics may be learnt in vacuum,
confined to a single subject in the curriculum. Students will be unable to appreciate the
relevance of ethical decision-making in other parts of the curriculum.
Such an approach also tends to portray ethics merely as knowledge of
professional responsibility rules that can be learned and applied like other
black-letter principles, as if they provide complete or sufficient guidance for the
would-be ethical practitioner - which they do not.51
Although it is important for a student to familiarise himself with the rules as stipulated,
there is more to teaching ethics than merely regurgitating its rules. The teaching of ethics
requires much more before the students realise that scoring an A in Ethics &
Professional Practice is just as laudable as an A in Intellectual Property Law.
51 Robertson M Renewing a Focus on Ethics In Legal Education
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An assessment of their method could not have been described better than prominent
scholar, Deborah L Rhode52
The current state of professional ethics leaves much to be desired. In most law
schools it is relegated to a single required course that ranks low on the academic
pecking order. Many of these coursesconstitute the functional equivalent of Legal
ethics without the ethics, and leave future practitioners without the foundations for
reflective judgment.
The pervasive method has proved to be popular and successful, especially in the United
States. This method has been viewed as the solution to the challenges posed by the
passive method52.
There is some scepticism of the pervasive method and it stems from the perception that
implementing such method may not be an easy task, since it requires the proper
incorporation of material on ethics into substantive law subjects. However, just like a
thousand mile journey begins with a single step, implementing a pervasive method in the
Malaysian legal education system is not impossible. In fact some ethical components are
already fused into core curriculum subjects, save for the fact that it has not been
highlighted as issues of ethics. For example, in the Law of Evidence and Procedure,
52If Integrity Is The Answer, What Is The Question (2003) 72 Fordham Law Review 333 at 34052
See Weckstien DT Boulder II: Why and How, 41 University of Colorado Law Review 304 where at p. 308 he
states: we cannot expect too much from ethics classes held, like church services, a couple of hours a week. We
need to pervade the entire atmosphere of legal education
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examination of witnesses is already dealt with; in the Law of Evidence the issue of
privilege of the client vis--vis non-disclosure by the advocate is also addressed. Rules
against touting, advertising and the general duties of an advocate are drilled into First
Year students through subjects such as Law & Society and Malaysian Legal System;
advocacy and the role of the prosecutor in Criminal Procedure; and the role of the
advocate as stakeholder in Property Law. What may be required therefore in the
Malaysian context is a more comprehensive coverage of ethics in the individual
subjects
53
and the emphasis that it is part of Legal Ethics.
The pervasive method however is not fool-proof. It has been stated54 that in order to be
accepted, a legal ethics course ought to become as much like a traditional law course as
possible, increasing the number of units, stressing law over theoretical, empirical or
clinical approaches, and preferring Socratic interrogation or lecture to open discussion a
single required course.
In fact by teaching ethics in a manner different from contracts, crime or competition law,
are we running the risk of delivering the message that ethics education is not nearly as
important as courses in other subjects?
53See Burnham S.J, Teaching Legal Ethics in Contracts (1991) 41 Journal of Legal Education 10554
Pipkin RM Law School Instruction In Professional Responsibility: A Curricular Paradox 1979 AM B, Found
Res J 247
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F. SUGGESTIONSFOR REFORMS
There are advantages and disadvantages in each and every method employed. I am
suggesting therefore that we incorporate all methods in the teaching of legal ethics.
The first thing that we should do is to ensure that Legal Ethics is taught in all four years,
from the First Year to the Bar Finals stage, focussing not only on different aspects but
different methods as well.
In the First Year, it is suggested that Legal Ethics be taught adopting the Socrates
approach. This is because one must appreciate the fact that being the product of the
Malaysian Education system
55
, first year law students may not adapt well to other
methods of teaching. The cold-turkey approach of converting to a more innovative
method of teaching may be counter-productive.
There is some scepticism in teaching Legal Ethics to First Year law students, as they have
a tough time seeing the rules as anything but a set of abstractions to be mastered
intellectually, or least memorised. Furthermore, their substantive knowledge of the law is
limited and this may restrict their ability to engage hypotheticals on a realistic level. On
55 In the Malaysian education system, the teaching method employed is primarily passive focusing more on theabsorbing and memorising in classrooms and regurgitating at examinations.
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the other hand, it has bee argued that if Legal Ethics is so important, why should it be
taught on the way out, at the Bar Finals stage?
It is suggested therefore that the emphasis in the first year should be general rules of
ethics56 and the role, function, duties and powers of the Bar Council. This perhaps should
be fused into a compulsory first year subject, such as the Malaysian Legal System (MLS).
In the subsequent years (Second, Third and the Bar Finals), what could be adopted is the
pervasive approach based on the PBL. For instance, rules pertaining to conflict of interest
and fiduciary duties towards clients may be fused into subjects such as Contracts and
Property Law; the lawyers duty towards courts may form a component in Civil Procedure
and Criminal Procedure and law relating to privilege may be highlighted in the Law of
Evidence.
The PBL method may be implemented in various stages but what is most important is for
the lecturer to relinquish control. He should merely be their guide, prompting the
discussion by asking questions or even playing devils advocate. Role-playing may be
something to consider in the PBL as it adds enormous value.
At the pupillage level, a clinical stimulation method should be adopted. This is suitable as
it would provide students with opportunities to confront and engage in ethical dilemmas.
56Students should familiarise themselves with general canons of ethics such as the rules against advertising and
touting.
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Clinical legal education offers students the chance to integrate theoretical
knowledge of law, based largely on appellate decisions learnt in the classroom,
with the everyday experience of legal practice and the legal system. Students
discover that there may be no appropriate legal solution or that a legal solution
may be not available to a client for a variety of reasons including cost,
unavailability of legal aid, delay, lack of evidence or enforceability.57
Since the students have analysed the trees with a fine-tooth comb, we do not want them
to miss the forest.
The suggestion is to have the students directly involved in legal practice in a legal aid
environment. They should perform their duties under supervision, perhaps one day a
week throughout the 9 month pupillage or whatever period as the Bar Council deems fit
to prescribe.
G. CONCLUSION
I must admit that it may be difficult to implement the teaching methods suggested
because of the difference in the content of the syllabi of the foreign and local law
programmes. What has been suggested therefore may be workable only in the law
57 Jerome F, Why Not a Clinical-Lawyer School (1933) 81, University of Pennsylvania Law Review 907
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programmes taught at the local public universities as there is no control over the content
of courses taught in the external or foreign programmes.
There is also the need for cooperation amongst the Bar Council, Legal Profession
Qualifying Board and the respective law faculties of the public universities to ensure that
the content of the course is standardised.
Until and unless there is some consistency in the law degrees recognised in Malaysia, it
may be difficult to adopt the suggestions made and those who are foreign-trained may
only have the benefit of familiarising themselves with legal ethics in Malaysia at the
pupillage stage.
Last but not least is the importance of implementing Continuing Legal Education (CLE)
programmes. What has to be ensured is for Legal Ethics to be one of its components and
this should form the forum to discuss current and future issues in Legal Ethics.
It appears therefore that the co-operation of every sector in the Legal Profession may be
required not just law lecturers and the respective faculties. We are looking at the
involvement of the Bar Council and maybe even the judiciary, if the need arises.
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THANK YOUSALAMAT XIEXIE - KHWAP KHUNTERIM A KASIHCAM ONAR KUNKHWAPJAICHEZU BAGRACIAS
Mariette Peters
Knowledg e Ma nag er (Knowled ge Mana ge ment, Resea rc h & Training)
Tel: +603-20773407
Fax: +603-20341913
Email: [email protected]
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